The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED, DISMISSING THIS ACTION IN ITS ENTIRETY OBJECTIONS, IF ANY, DUE IN THIRTY DAYS (Doc. 41.)
Alan DeVon ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at California State Prison-Los Angeles in Lancaster, California. The events at issue allegedly occurred at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff filed the Complaint commencing this action on November 29, 2007. (Doc. 1.) This action now proceeds with the Fifth Amended Complaint filed on April 25, 2011, against defendants Lieutenant T. Akin*fn1 and Nurse Carlson ("Defendants"), for inadequate medical care in violation of the Eighth Amendment. (Doc. 31.)
On October 18, 2011, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies. (Doc. 41.) On April 12, 2012, Plaintiff filed an opposition to the motion. (Doc. 43.) On April 19, 2012, Defendants filed a reply to the opposition. (Doc. 44.) On May 1, 2012, Plaintiff filed a surreply. (Doc. 45.) On May 4, 2012, Defendants filed a reply to the surreply. (Doc. 46.) On July 26, 2012, Plaintiff filed another surreply. (Doc. 48.) On August 23, 2012, the Court issued an order striking Plaintiff's two surreplies and permitting Plaintiff to withdraw his opposition and file an amended opposition, in light of a separately issued Notice served upon Plaintiff by the Court pursuant to the Ninth Circuit's decision in Woods v. Carey, 684 F.3d 934, 940 (9th Cir 2012). (Docs. 49, 50.)
On September 10, 2012, Plaintiff withdrew his previously-filed opposition and filed an amended opposition to Defendants' motion to dismiss. (Doc. 51.) On September 19, 2012, Defendants filed an amended reply.*fn2 (Doc. 52.) Defendants' motion to dismiss is now before the Court.
II. STATUTORY EXHAUSTION REQUIREMENT
Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendants have the burden of raising and proving the absence of exhaustion.
Jones, 549 U.S. at 216, 127 S.Ct. at 921; Wyatt, 315 F.3d at1119. The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
III. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff alleges as follows in the Fifth Amended Complaint. On September 10, 2008, at 6:15 a.m., at SATF, Lieutenant T. Atkins came to Plaintiff's cell to weigh Plaintiff because Plaintiff had been refusing non-Kosher food trays during the past two months. Plaintiff was "man-down" in his cell lying on the floor with serious back pain and could not get up to weigh himself. Sgt. Jonas (not named as a defendant) and Lt. Atkins accompanied a nurse to check on Plaintiff. The nurse asked Jonas and Atkins whether Plaintiff appeared to be in serious distress. They decided not to call medical staff. Lt. Atkins and the nurse told Plaintiff they would weigh him when he decided to get up off the floor, and then they left. When the counting officer came by, Plaintiff pleaded for medical help.
Plaintiff had previously been evaluated by the primary care physician, who found an unusual bulge in Plaintiff's lower back, and Plaintiff was scheduled for a MRI test. However, the MRI test had not been done before Plaintiff was found on the floor.
Plaintiff remained stretched out on the floor for hours, unable to stand, eat, or take himself to the bathroom. At 2:00 p.m., the Second Watch staff left, leaving word that Plaintiff should not be taken to the emergency room. Lt. Atkins told medical staff and the Third Watch administration to leave Plaintiff on the floor and that eventually Plaintiff would get up by himself. Plaintiff was left unattended for several more hours. At 11:00 p.m., Plaintiff cried out to the First Watch staff, who contacted Sgt. Williams (not named as a defendant). C/O Alverado (not named as a defendant) told Plaintiff that Lt. Atkins and the medical staff had told them not to help Plaintiff. Sgt. Williams ordered Nurse Carlson to come and evaluate Plaintiff's condition.
Plaintiff told Nurse Carlson he had radiating pain shooting from his neck down his back to his left leg, but she (Carlson) did not notify the doctor who was on call. Nurse Carlson told the correctional staff not to assist in lifting Plaintiff from the cell floor, that Plaintiff would have to crawl to the ambulance. Plaintiff was ordered to crawl or he would not be given treatment. When his cell door opened, Plaintiff held his breath and made every attempt to move himself over the threshold. C/O Alverado had the emergency ENTs come back to E-Facility, and Plaintiff was again told by Carlson to get up and crawl to them. Plaintiff attempted to crawl, without success. Sgt. Williams told Carlson he felt that Plaintiff was in genuine distress, and that staff was available to carry Plaintiff on the gurney, but Carlson refused to allow it. Plaintiff was left on the cell floor until he complained of chest pain to get medical attention. Sgt. Williams had C/O Alverado and another staff member pick Plaintiff up in a cradle ...